What is a counterclaim? Consider 137 Code of Civil Procedure of the Russian Federation, what rights does it give and to whom, how to properly exercise them? What nuances arise in practice?
Counterclaim concept
A counterclaim is a statement filed during the consideration of an already opened case in accordance with Art. 137 Code of Civil Procedure of the Russian Federation.
Objection to the statement of the position of the defendant and argumentation of the groundlessness of the position of the plaintiff. The defendant in objection does not put forward any requirements. A counter statement implies the existence of independent requirements.
For example, the plaintiff wishes to evict the defendant, while the defendant asks to recognize the right of his residence or ownership of the disputed housing.
What can not be confused counterclaim
The law provides for the possibility of filing a claim, the consideration of which may be postponed due to the consideration of another matter. Requests to the court are not related to such an extent that one lawsuit excludes another. For example, a lawsuit has been filed to recover child support. In respect of the defendant, a paternity case is being considered. Until the issue of the origin of the child is resolved, the consideration of the case of alimony is postponed.
Legislative regulation
Only two articles in the Civil Procedure Code, 137 and 138, are devoted to the counterclaim. The second describes the conditions for the adoption of a counterclaim.
It is necessary to take into account practical explanations of the Armed Forces of the Russian Federation of a general nature. It is with them that the study of judicial practice begins under Art. 137 Code of Civil Procedure of the Russian Federation.
Grounds for counterclaim
The law limits the list of grounds for filing a counterclaim:
- Offsetting claims
- the court’s agreement with the initial claim will lead to the loss of relevance of the defendant’s future claim;
- the combination of two claims will help the court to resolve the existing dispute faster and better.
Without understanding the provisions of Art. 138 p. 137 Code of Civil Procedure of the Russian Federation will seem pointless.
Practical examples
Offsetting claims takes place in cash and other liabilities. Both parties have mutual obligations. This happens in contractual obligations.
An example that relates exclusively to civil law is the offsetting of maintenance obligations when one child lives with his mother and the other with his father. Each parent has the right to demand child support payments. Often claims are canceled by offsetting.
Often Art. 137 Code of Civil Procedure of the Russian Federation is used in disputes on the division or allocation of a share from a residential building. One of the owners wants to ensure that he was allocated a separate part of the house. Other owners may put forward similar requirements.
A serious restructuring of a residential building requires costs, but in such claims there is an offset of monetary obligations, because each party is obliged to pay other compensation. It is extremely rare that the section corresponds to ideal shares, and the options offered by experts, one way or another, lead to the payment of compensation.
The current edition of Art. 137 Code of Civil Procedure of the Russian Federation has not changed since the adoption of the code, which positively affects the stability of the practice of applying the law.
How long does the defendant have to file a lawsuit
The judge at the preparatory stage is obliged to clarify the rights of each of the parties and, in particular, the right to counterclaim. How long does the respondent have to prepare? Formally, until the judge retired to his office to make a final decision there. In fact, the defendants serve immediately or after a short period of time.
In Art. 137 Code of Civil Procedure of the Russian Federation with comments, it is noted that excessive delay in filing a claim seriously limits the defendant.
Design Features
There are a number of required details:
- the name of the court which is to accept the claim;
- surname and initials of the judge, case number;
- information about the defendant and the plaintiff (name, address of residence or name of organization and location);
- name of the claim, reference to its counter character;
- circumstances of the claim, justification of its nature;
- claim requirements;
- list of attached documents;
- signature of applicant or representative and filing date;
- receipt confirming payment of state duty.
The absence of indications of the counter nature of the claim may result in the court refusing to accept it.
Procedure for filing a claim
The lawsuit is filed with the court considering the initial application. The plaintiff does not need to comply with the rules of jurisdiction. Here they do not work.
Failure by the submitter of the rules regarding the content and execution of the claim obliges the court to leave it motionless and give time to eliminate errors.
Consideration Features
The court either accepts or refuses to accept a counterclaim. Clarifications offer the courts to postpone consideration of the counterclaim accepted for consideration. The issue is discussed with representatives of the parties, and if necessary, they are given time to prepare.
According to the clarifications of the Constitutional Court of the Russian Federation and the Armed Forces of the Russian Federation, a separate appeal against the rejection of a counterclaim is not allowed. At the same time, it is not forbidden to appeal in the appeal against the main decision on the legality of not accepting a counterclaim.
The same explanations stipulate the right to file a rejected claim in a general manner, but to what extent the defendant will be able to protect his rights in this case is a moot point.
Third Party Position
In addition to the plaintiffs and defendants, full-fledged participants are third parties with independent requirements. The law directly equates them with the plaintiffs, gives them the same rights and obligations.
The court's refusal to enter the case can be appealed by sending a private complaint. The independence of the claims lies in their discrepancy with the requirements of the plaintiff. For example, the plaintiff asks to evict the defendant, and the third person asks to recognize his ownership of a part of the disputed apartment.
The application must meet the requirements for the claim and is paid by state duty.
If we take into account Art. 42, 43 and Art. 137 Code of Civil Procedure of the Russian Federation, filing a counterclaim by a third party is not possible, this right is provided by law only to the defendant.